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ELRCPartially AllowedNot stated in the extract provided· [2023] KEELRC 1772 (KLR)

Kathambi v Safaricom Ltd (Cause 1986 of 2014) [2023] KEELRC 1772 (KLR)

Employment and Labour Relations Court
25 July 2023
JRJames Rika
6,810 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The claimant, employed by the respondent from 2008 as a Customer Care Representative at its call centre, claimed she suffered functional dysphonia (vocal cord paralysis) from prolonged headset work, alleging the respondent's negligence and failure to provide a safe system of work, particularly after the changeover from an analogue to a digital system allowing call-manager intrusion which forced employees to shout. She sought liability, special damages, general damages, cost of future medical treatment, a certificate of service and costs, having been retired on medical grounds in October 2012 at age 31. The respondent denied liability, asserting safe certified equipment, training, and shift limits. The court found strong medical evidence that the claimant suffered vocal cord paralysis and that the condition was occupational, given her clean medical examination at recruitment. On liability, the respondent failed to adduce evidence relevant to the claimant's employment period - no procurement records for the headsets, no proof of training on the changeover, and shift management documents covering only 2014-2017. The court held the respondent negligent and fully liable. On quantum, the court awarded general damages of Kshs 2,500,000 for pain, suffering, mental anguish and loss of amenities, but declined the cost of future medical treatment because the claimant's evidence and the last medical report showed she recovered her voice and no future care report was filed. Special damages were also declined as neither specifically pleaded nor proved with receipts. The certificate of service was ordered to issue, with costs to the claimant and interest at court rate from the date of judgment until payment in full. Judgment dated 25 July 2023 at Nairobi.

Key legal issues

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01

Occupational injury or illness

Holding

The claimant suffered vocal cord paralysis (functional dysphonia) attributable to her occupation

Reasoning

She passed ENT medical examination on recruitment; multiple medical reports from Professor Macharia, Dr Rupani, Aga Khan and Nairobi Hospitals and Professor Kiama linked the dysphonia to prolonged voice use at the call centre, establishing an occupational origin.

p. 12
02

Employer's negligence and failure to provide a safe system of work

Holding

The respondent was negligent in failing to provide safe call devices and a safe system of work

Reasoning

The respondent adduced no evidence relevant to the period of employment: no procurement records, no proof of the devices in use, no training on the analogue-to-digital changeover, and no proof of adequate breaks or shift management. Its witness could not give technical evidence, so the claimant's uncontroverted evidence stood.

03

Quantum of general damages

Holding

General damages of Kshs 2,500,000 awarded; the court disbelieved some exaggerated particulars of injury

Reasoning

The court relied on its discretion guided by precedent, considering the mental anguish, loss of amenities and loss of employment at age 31, but preferred the last report of Professor Macharia showing her voice was improving and disbelieved unsupported claims such as total loss of voice for 3 years.

p. 17
04

Cost of future medical treatment

Holding

Declined for lack of proof

Reasoning

The claimant recovered her voice per her own evidence and Professor Macharia's last report; she filed no cost of future care report and made no accurate evaluation of future needs, so the court could not assess future care.

p. 4
05

Special damages

Holding

Declined for failure to specifically plead and prove

Reasoning

The claimant pleaded no specific figure, pleaded receipts would be supplied, but exhibited none for medical expenses or reports, contrary to the requirement in Hahn v Singh.

p. 16

Legal principles established

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  • An employer owes a duty to provide adequate equipment and a safe system of work
  • Special damages must be specifically pleaded and specifically proved

Court orders

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  1. 1.The respondent shall avail the claimant her certificate of service
  2. 2.General damages for pain, suffering, mental anguish and loss of amenities awarded at Kshs 2,500,000
  3. 3.Costs to the claimant
  4. 4.Interest allowed at court rate from the date of judgment till payment in full
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment injury claim (originally filed at the Chief Magistrate's Court, Nairobi)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kathambi v Safaricom Ltd (Cause 1986 of 2014) [2023] KEELRC 1772 (KLR)", Case Analysis (2023). Not stated in the extract provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1772/eng@2023-07-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.